Issues
When analyzing an ineffective assistance of counsel claim, would it be irrational for a longtime legal resident of the United States to reject a plea offer and proceed to trial in the face of strong evidence of guilt when the plea would result in mandatory deportation?
Petitioner Jae Lee pleaded guilty to possession of ecstasy with the intent to distribute, an aggravated felony and deportable offense. Lee argues that he is entitled to Strickland relief because ineffective assistance of counsel prejudiced his case. The United States argues that, although Lee did experience ineffective assistance of counsel, he is not entitled to Strickland relief because it would have been unreasonable to seek trial in lieu of a guilty plea in this case. This case allows the Supreme Court to examine what Sixth Amendment constitutional relief is available to noncitizen United States residents that experience ineffective assistance of counsel resulting in mandatory deportation.
Questions as Framed for the Court by the Parties
In the context of a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States, whether it is always irrational for a defendant to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.
Facts
In 2009, Jae Lee, a legal resident of the United States, was charged with the possession and intent to distribute ecstasy. Following his lawyer’s incorrect advice, Lee pleaded guilty to the charges against him, not realizing at the time that he ran the risk of mandatory removal from the United States.
Lee, currently in his mid-40s, has lived legally in the United States since 1982, when he first moved here from South Korea with his family. Though Lee has resided in the United States for decades and his parents became naturalized citizens, he never obtained American citizenship. After studying in New York, Lee moved to Memphis, Tennessee, where he successfully owned and managed restaurants. In addition to his restaurant business, Lee became involved in dealing drugs.
The government built a strong case against Lee “for possession of ecstasy with intent to distribute.” The government found a witness willing to testify that Lee had sold him drugs several times. In fact, Lee himself acknowledged that he not only possessed ecstasy but also distributed it to his friends. As a result of this evidence, Lee’s attorney recommended that he plead guilty in order to obtain a lighter sentence. Lee’s attorney assured him that he would not be “subject to deportation” as a result of his crime.
Relying on this assurance, Lee followed his attorney’s advice and pleaded guilty. Lee’s lawyer’s advice was wrong. Because Lee is not an American citizen and “possession of ecstasy with intent to distribute” is an “aggravated felony,” Lee was rendered deportable. Given that Lee does not want to be deported, he filed a motion to vacate the conviction, claiming that his attorney’s assistance was ineffective.
The district court denied Lee’s motion to vacate his conviction and the United States Court of Appeals for the Sixth Circuit affirmed the district court’s decision. The Sixth Circuit held that a jury was not required to establish Lee’s guilt given all of the evidence the government obtained. It also considered both the possibility that the prosecutor would have offered Lee a plea for a non-deportable offense but found it to be speculation and also the possibility of jury nullification but found it irrelevant to the prejudice analysis. The United States Supreme Court granted a writ of certiorari on December 14, 2016 in order to determine whether or not Lee was denied his Sixth Amendment right to a jury trial as a result of the court’s decision to deny Lee’s motion.
Analysis
WHETHER LEE SATISFIES MAKING A STRICKLAND CLAIM
Lee argues that he was prejudiced by ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). To make a Strickland claim, a defendant must satisfy two prongs: first, a defendant must show that an attorney’s counsel was inadequate; and second, the defendant must show that he was prejudiced by the attorney’s deficient work. Lee maintains that he satisfies both prongs for a Strickland claim. First, Lee contends that his criminal defense attorney misinformed him by saying that Lee’s guilty plea could not result in deportation. Second, Lee argues that his attorney’s incorrect advice prejudiced him. Lee claims that he satisfies the Hill v. Lockhart, 474 U.S. 52 (1985), prejudice analysis: but for his attorney’s incorrect legal advice, Lee’s legal outcome would have been significantly different. Lee asserts that he would have rejected the plea and would have instead pursued trial had his attorney provided accurate information and told him that Lee’s plea put him at risk for deportation. Lee points to several instances where he voiced his opposition to deportation given his long-term stay in the United States and his investment in his restaurant businesses. Even if he would have ultimately accepted the plea, Lee maintains that he was still prejudiced by being deprived of the opportunity to negotiate a plea without deportation outcomes. Therefore, Lee argues that he is entitled to Strickland relief because he was deprived of an objectively superior alternative.
The United States concedes that Lee satisfies the first Strickland prong by showing that his attorney provided ineffective assistance of counsel. Still, the United States counters that Lee has not shown that his attorney’s flawed advice had a significantly adverse effect on the outcome of his case. The United States asserts that Strickland relief is only available to defendants with a realistic likelihood of success at trial from the perspective of an objectively reasonable lawyer. Moreover, the United States argues that the relief of removing an adverse legal outcome is only warranted if the defendant can show that he is worse off than a similarly situated defendant because of his poor legal representation. Even if the defendant can show that his attorney’s ineffective counsel prejudiced him, the United States maintains that any relief must be molded to match the level of the Sixth Amendment constitutional violation at stake. Noting policy interests in finality, the United States argues that Lee is not entitled to a different outcome because his attorney’s deficient representation did not impact Lee’s legal outcome to the level of a constitutional violation.
WHETHER THE GOVERNMENT’S EVIDENCE IS DISPOSITIVE OR A FACTOR
Lee argues that the strength of the government’s evidence against him is not dispositive in determining whether Strickland relief is available. Lee points to the fragility of the government’s allegedly strong evidence, arguing that it could fall apart at trial. As a result, Lee reasons that the government may fail to meet the beyond a reasonable doubt standard at trial. Lee also points to a balancing of considerations under Premo v. Moore, 131 S. Ct. 733 (2011), including the strength of available evidence, the implications of relevant legal options, and other considerations that may impact a defendant’s willingness to accept a plea. Specifically, Lee argues that the strength of the government’s evidence should be analyzed in light of the unique considerations arising in immigration cases, like deportation. For instance, Lee maintains that some defendants may prefer a longer prison sentence in lieu of deportation if they could remain close to their family, facilitating regular visitations. Additionally, Lee claims that a defendant has a strong incentive to go to trial if even a negligible chance exists that he or she could avoid deportation; such a defendant would have nothing to lose.
The United States argues that a reasonable attorney would not recommend going to trial in this context, risking a longer prison sentence and definite deportation if convicted. Even if trial were a reasonable option for Lee, the United States claims that Lee would have been found guilty at trial given the strength of the government’s evidence against him, such as the cash, armed weapon, and drugs found in his home. Even if Lee would have rejected the plea and elected to go to trial, the United States argues that deportation would have been an unavoidable consequence. The United States maintains that relief cannot be granted based on speculative alternative scenarios, such as assuming Lee could have negotiated an alternate plea without a deportation option.
WHETHER THERE IS A PADILLA CLAIM
Lee argues that the second Strickland prong can be satisfied by an individual showing that rejecting the plea and asserting his right to a trial would have been a rational option under Padilla v. Kentucky, 559 U.S. 356 (2010). Under Padilla, Lee explains that prejudice can be shown in three ways where a guilty plea arises from counsel’s incorrect advice regarding immigration consequences: (1) showing “a reasonable probability of a more favorable outcome at trial that avoids deportation;” (2) showing that a defendant would rationally decline a plea offer in lieu of negotiating an option without deportation; or (3) showing that deportation has such material consequences it is rational for a defendant to reject a plea offer and go to trial “regardless of the strength of the evidence against him.” Additionally, Lee claims that under Padilla, a client receives constitutionally ineffective assistance of counsel when his or her attorney does not inform the client that a guilty plea would result in mandatory deportation. Lee argues that he has a Padilla claim because his attorney erroneously informed him that deportation was not an option in his case. Even if Lee would not have ultimately produced a successful defense at trial, Lee claims that he is constitutionally entitled to a jury trial, and the government cannot maintain that a marginal likelihood of avoiding deportation is an irrational litigation strategy.
The United States counters that Lee does not have a Padilla claim because he has not shown that rejecting a plea deal resulting in his deportation in lieu of trial is a rational alternative. The United States maintains that Lee has the burden of showing he had an objectively better choice to the government’s plea offer in addition to showing he would have declined a plea deal with an explicit deportation outcome. The United States argues that, even if Lee had known deportation was an option, Lee could not have rejected the plea because he had neither a plausible defense nor a rational possibility of avoiding conviction at trial. Additionally, the United States argues that, even if Lee successfully shows ineffective assistance of counsel, Lee fails to satisfy the proper standard of a Padilla claim: to “convince the court that a decision to reject the plea bargain” was “objectively rational under the circumstances.” The United State highlights that the Padilla Court declined to determine whether “the defendant had sufficiently alleged prejudice” but instead remanded to determine if the defendant was prejudiced by his counsel’s deficient representation. The United States contends that the Court would find that Lee was not prejudiced since it is challenging for defendants who have admitted their guilt to meet the Strickland prejudice prong. Moreover, a defendant must demonstrate that rejecting the plea bargain was objectively rational and cannot “rely solely on ‘evidence that he sufficiently demonstrated to counsel his interest.”
Discussion
WHETHER IT IS RATIONAL TO PROCEED TO TRIAL TO AVOID DEPORTATION
The American Bar Association (“ABA”), in support of Lee, argues that a rational defendant may be willing to “roll the dice” on a jury to avoid permanent deportation that a guilty plea may require. The ABA contends that the Court has seen that some noncitizens risk obtaining a longer sentence to avoid pleading to a deportable offense. The Asian Americans Advancing Justice and other immigrants’ rights group (“AAJC”), also in support of Lee, further explain that, where a noncitizen risks deportation as a result of a plea deal and the consequences of deportation are drastically harmful to that noncitizen, it is rational for him to reject a plea deal despite the high risk of trial because the small likelihood of acquittal or conviction of a non-deportable offense is so valuable. Therefore, the ABA argues that, given the large role the risk of deportation plays in a noncitizen’s decision-making, the Court should require that attorneys provide competent advice to their clients about whether a plea may result in the noncitizen’s deportation. The ABA claims that counsel’s failure to provide competent advice to his noncitizen client results in an ineffective assistance, which ultimately reduces the fairness of the criminal justice system.
On the other hand, the Sixth Circuit claims that a rational defendant who faces strong evidence of guilt for charges for a deportable offense would choose not to go to trial. The Sixth Circuit claims that the individual would likely accept a plea deal, which would result in a shorter sentence. The Sixth Circuit furthers this argument by noting that a noncitizen’s claim that taking the plea deal was not an informed decision because counsel did not adequately explain the deportation consequences is insufficient to vacate that noncitizen’s conviction. The Sixth Circuit explains that accepting the noncitizen’s argument would provide the noncitizen “a ready-made means of vacating” the conviction, allowing the noncitizen to surpass the hurdle of showing prejudice. The Sixth Circuit also argues that vacating judgments because of counsel’s failure to provide competent advice to his noncitizen client would encourage defense counsel to act incompetently to favor his noncitizen clients. Moreover, the Sixth Circuit contends that the consequences of vacating a judgment that resulted from what would otherwise be considered a rational decision is significant. The Sixth Circuit claims that the government would likely find it difficult to re-prosecute given the time that has lapsed and the sentence the noncitizen has already served in prison.
HOW SEVERE IS THE DEPORTATION PENALTY?
AAJC argues that deportation is the most severe penalty the court can impose on noncitizens who are guilty of specific crimes and noncitizens should, therefore, have the choice to knowingly reject or negotiate plea deals that lead to deportation. AAJC explains that deportation deprives noncitizens of their right to stay and live in “this land of freedom” with their family and friends, which is a drastic measure because it completely uproots the noncitizens that have plead guilty to specific crimes. AAJC argues that deported noncitizens are often sent to countries that are foreign to them, countries they have never visited, and countries whose language they have forgotten or never learned. AAJC claims that assimilation in these foreign countries is difficult for these noncitizens, who often lack marketable skills and are blamed by foreign government officials for the “increase in crime.”
The United States argues that removal is mandated by statute and results from the severity of the crime the noncitizen has committed. The United States claims that the only alternative to immediate removal in the case of an aggravated felony where there is overwhelming evidence of the noncitizen’s guilt is a jury conviction, a much longer prison sentence with limited visitation rights far from family and friends, and inevitable removal. The United States argues that immediate removal, as would result from the plea in this case, on the other hand, means a significantly shorter prison sentence and freedom in another country.
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Acknowledgments
Additional Resources
- Mitchell A. Mosvick, et al., Lee v. United States, CATO Institute (Feb. 8, 2017).
- Daniel Horwitz, U.S. Supreme Court to Hear Tennessee Sixth Amendment Case on Immigration-Related Plea Bargains, Supreme Court of Tennessee Blog (Dec. 16, 2016).
- Veronica Saltzman, (Ir)Rational Actors: The Right to Trial in Lee v. United States, Harvard Civil Rights- Civil Liberties Law Review (February 17, 2017).
- Debra Cassens Weiss, Supreme Court to Consider Case of Immigrant Who got Bad Advice from Lawyer, ABA Journal (December 16, 2016).